Category Archives: Copyright in the Classroom

A vexing question

I think it is time we talked about a difficult and sensitive issue.  I have been asked the question over and over again during the past few years, and I recently saw it discussed on an electronic list.  Should libraries stop buying materials from the publishers who are suing Georgia State University over electronic reserves?  Numerous librarians have asked me since the case began if they could protect the environment for research and teaching by refusing to buy materials sold by Oxford University Press, Cambridge University Press and Sage Publishing.  Another version of this question that I have also heard is whether or not libraries should try to avoid doing business with the Copyright Clearance Center, which is helping to finance the lawsuit, either by restricting e-reserves to portions within the trial court’s definition of fair use or by insisting on dealing directly with the publisher of the work, not the CCC.

I say this is a difficult and sensitive issue because any attempt to organize a movement along these lines raises worries about violations of anti-trust laws.  I have to say immediately that I am NOT an expert on anti-trust, and I frankly do not know where the boundaries lie.  I do know that organized boycotts that attempt to force prices down are problematic; anti-trust law is very concerned to protect the role of the competitive market in pricing, so organized movements to reduce prices are quite likely, I believe, to be considered “combinations in restraint of trade.”  It is less clear to me what consumers can do when they object to a business practice of a company, rather than price.  There have been apparently legal boycotts against retailers based on their labor relations practices; this article, for instance, refers to a call for such a boycott by a former Clinton administration cabinet secretary, who apparently did not get into trouble.  Where the line is between price boycotts, which I think are likely to be illegal, and permissible boycotts over business practices, I do not know.

But there is another, more fundamental reason why I do not think libraries can or should organize over this issue.  Library buying decisions are mission-driven and must be made locally.  For some schools, it may be possible to decide not to buy Oxford, Cambridge and Sage titles because of the lawsuit without compromising their mission to serve teaching and research on their campuses.  Other schools would find that to be an intolerable burden on their ability to facilitate education.  It depends on the needs of a campus and is probably a conversation that each library should have with its own community.

I want to emphasis this again.  The reason we are so disturbed by this unprecedented attack on higher education from academic publishers is precisely because it threatens to undermine our core mission.  It would be a mistake to undermine that mission ourselves just because we are so angry at those publishers.  So this is what I tell librarians who ask me this question:  If you believe you can refuse to buy from these publishers without harming your fundamental mission, or if you have the support of your faculty, then I think you have made a courageous decision that I admire.  But if you are considering a unilateral decision without consultation with the teachers, students and researchers in you own community, then I think you have more work to do.

The conversations I am advocating here could have a different effect as well.  After all, this deplorable lawsuit is not a “library problem,” it is an academic problem; an issue that needs to be addressed by the higher education community.  There were, remember, more faculty members called to testify at the trial in 2011 than there were librarians.  And it is our faculty members who supply, for free, the content that these publishers publish and the reviewing work that assures its quality. To my knowledge there is nothing in the law that prevents faculty authors from deciding to publish in and review for different publishers instead of those who are attacking basic scholarly practices.  A large group of mathematicians and others made such a pledge some time ago to withhold their scholarship and their labor from publishing giant Elsevier, a move that garnered a great deal of publicity to their complaints and made a real difference on the public policy front.  I would be delighted to see librarians and faculty authors on campuses across the US have a similar conversation about how decisions about where to publish or review get made, and whether some decisions are better for the overall scholarly environment than others.

Law and politics in the GSU case

Last week we saw the first real flurry of activity reported in the publisher appeal of the Georgia State University fair use victory.  The news items and filings call our attention to both the legal and the political aspects of the appeal.

Starting with the law, over the weekend I gave the publishers’ Appellants Brief a preliminary examination, and want to highlight four points from that brief that the library community needs to be aware of and to know how to refute.

The most fundamental part of the publishers’ argument is the analogy between the practice of e-reserves at Georgia State and the cases that were decided in the 1990s regarding printed course packs.  At trial, Judge Evans rejected this analogy for a good reason that the publishers largely ignore.  They assert that the Judge impermissibly distinguished print from digital “course packs” and thereby violated the principle that copyright law requires “media neutrality.”  It is quite true that courts often tell us that copyright should be technologically neutral, although that is by no means a hard and fast rule — the fact that there is a special provision in the law itself regarding Digital Audio Tape proves that Congress itself is not really dedicated to “media neutrality.”

But of course the real problem with this argument is that it entirely misses the point of the distinction Judge Evans drew.  She simply did not decide to treat digital materials differently from print; she quite properly treated a non-commercial use differently from a commercial use in the fair use analysis.  The publishers want to throw sand in the Appeals Court’s eyes here by distracting them from the correct fair use analysis, which looks at specific circumstances.  In this case, there was no commercial intermediary for the e-reserves, but there was for the course packs involved in the cases the publishers cite.  Fundamental difference in facts equals different result on fair use, and no error on the part of the trial judge.  Instead, a persistent and probably willful failure to understand basic fair use law on the part of publishers.

A second argument that is key to the publishers’ brief is that only transformative uses can be fair use.  Judge Evans specifically found that the e-reserves at GSU were not transformative, and that is a point that the Appeals Court should re-examine carefully.  But even if that is affirmed on appeal, it does not rule out fair use.  Again, a complete reading of Judge Evans’ ruling shows that she got the fair use point exactly right — a use does not have to be transformative in order to be fair use.

When the Supreme Court re-calibrated the fair use analysis to focus on transformativeness in Campbell v. Acuff-Rose Music, they made this point explicitly, noting in a footnote that some uses could be fair without being transformative.  The publishers acknowledge that Judge Evans cited this footnote, but go on to argue, incredibly, that there is no justification for this contention in the statute, even though they recognize that the statue gives as one of its paradigmatic examples of fair use “multiple copies for classroom use.”  They still argue that Judge Evans should have given great weight to the alleged non-transformativeness of the use, apparently feeling that Congress did not intend the plain sense of that language about multiple copies for classroom use, or that it somehow was only sanctioning transformative multiple copies for teaching (a contention that does not even make linguistic sense).  It is absurd, but it shows how desperately hard it is to undermine the careful work Judge Evans did and how completely the publishers believe that the law is designed to serve their needs and only their needs.

Two other legal points before we turn to politics.  First, the publishers insist strenuously on the 1000 word limit for classroom copying that comes from the 1976 Guidelines on that topic, and which Judge Evans rejected.  They make no mention of the 10% standard from those guidelines, which the Judge did adopt, because the language of the Guidelines is “whichever is less.”  It is precisely that language, of course, that makes the Guidelines “impractical and unnecessary,” as Judge Evans said, and why they were never agreed to by most higher education groups.  Second, the plaintiff’s brief asserts that Judge Evans erred by approaching the analysis of market harm on a work-by-work basis.  Instead she should have looked at the overall impact of these “digital Course packs” on publishers overall, and accepted, apparently, their analysis of market harm even though it was not borne out by the revenue figures they were forced to provide to her. This argument overlooks the best reason of all for evaluating market harm on a case-by-case basis, the fact that publishers and the Copyright Clearance Center do not make digital licenses available on a uniform basis.  Each publisher takes a different approach and even within a publisher’s list there will be licensing differences for some works.  Although the CCC is touted to the courts as a uniform licensing solution, libraries that use it, and even those few who use its blanket license, know that it is far from uniform.  Since libraries must continue to do work-by-work analysis to obtain licenses, at vastly different prices and terms, and with uneven availability, the courts MUST look at fair use and market harm on a work-by-work basis.

Based on the weakness of the brief, I think the law still favors GSU.  But politics is a different matter.  Last week we learned that the United States government has asked for extra time to decide if it will intervene, and it has made clear that its intervention would either support the publishers or favor neither party.  The one thing we know for sure is that the Obama administration has no intention of defending educational fair use.  Why not?  Probably because of the revolving door between the Copyright Office (and other administration advisers on IP) and industry.  Most of the people who talk to the administration about IP policy have been either lawyers for the industry or lobbyists.  Unfortunately, the educational community cannot view this administration, or most of its predecessors, for that matter, as impartial arbiters of fair policy on copyright matters.

It is still possible, and even likely, I think, that the Court of Appeals will largely uphold the lower court ruling on GSU.  Judge Evans’ analysis was very careful, even fastidious, and there is is not much room to knock it down.  The publishers’ brief wants to win on “big picture” issues unique to its business model, but we can hope that the Court of Appeals will understand that this is not what fair use is about.  But even if they do, we are still left with an unfortunate situation, in which so much scholarly work, work created for a social benefit and usually with costs underwritten by taxpayers, is turned over gratis into the hands of commercial entities.  And those entities have proven that they will not shrink from fundamental attacks on teaching and research in order to squeeze every penny they can from that work, money that comes time and again from the public.  This is iniquitous for the public and for the scholarly authors, it is reaping what one does not sow, and it turns the purpose of copyright law on its head. But it is also business as usual for the commercial scholarly publishing business.

Last fall I had extended conversations with two senior executives from two of the plaintiff publishers in the GSU case.  I came away from those conversations convinced that both men genuinely saw themselves as providing a benefit for scholarship.  I do not doubt their sincerity, although the one who told me he could “live with” a 10% standard for e-reserve fair use obviously had little input on this brief, which jettisons 10% for a maximum of 1000 words.  But they are wedded to a business model that was once necessary for scholarship and simply is not any longer, and their denial of that fact, and desperate defense of the businesses they run (which is only to be expected) now poses a threat to the educational mission of colleges and universities.  The copyright in most of these works is owned by our faculty members, and it is well past time that we just refused to transfer those rights to commercial entities that undermine our best interests.  Libraries and faculty senates must accelerate the pace at which they embrace new models — and non-profit older models — for the dissemination of scholarship.  We know the change is coming, and actions such as those undertaken by these publishers as they continue to push the lawsuit against GSU, prove beyond doubt that we cannot wait much longer before scholars simply take their works and their rights out of commercial hands.

The collision of copyright and e-science

Last week I was attending a meeting on campus that had nothing to do with e-science (which today refers to virtually all science, I suppose) when a very fortuitous event occurred.  Professor Jerome Reichman of the Duke Law School handed me a copy of the April 2012 issue of the Minnesota Law Review (vol. 96, no. 4).  That entire issue is an article written by Reichman and Professor Ruth Okediji of the University of Minnesota Law school called “When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods in a Global State.”  It is a long article at 118 pages, although, because of the structure and conventions of law review articles in general, it is a quicker read than one might expect.  More importantly, however, it is a very rewarding excursion into the ways that copyright law around the world have developed and become an obstacle to scientific research, an even more “immediate and pervasive threat”, the authors suggest, than the more attention-grabbing problem of patent thickets.

The purpose of this post is to summarize the article and commend it to those who want more.  The growing interest in e-science on campuses makes this a timely topic; we need to understand the potential difficulties that copyright law can create for digital research and scientific communications. And I have to begin by saying how grateful I am to Jerry Reichman for making the effort to keep me current with the work he and Ruth Okediji are doing.  They are superb scholars whose work could and should have a direct impact on how universities support research and advocate for laws that facilitate, or at least do not impede, that research. Their joint work has tackled scientific issues and IP before, so I am delighted they are turning their considerable intellects to copyright and science.  Jerry is also a good friend and, as I now know thanks to my young cousin who had him as her Contract Law professor a couple of years ago, a fine teacher.

Reichman and Okediji begin their article with an historical examination of the “growing divide between copyright law and scientific research” that encompasses both the unique conditions in the U.S. and international obstacles to science that arise out of the complex of treaties and directives that are now in place.  They demonstrate convincingly that the traditional balance that has facilitated scientific research for years has been subverted recently by a variety of factors.  Among these unhappy developments are the trend toward ever more protectionist approaches to copyright, database protection rules in the EU and judge-made protection for facts and data in the U.S.,  the use of technological protection measures to lock up data that would otherwise be free for scientific reuse, and an overemphasis on the so-called three-step test from the Berne Convention, which is too often applied without any normative guidance.

In the course of this discussion, Reichman and Okediji make an interesting observation about limitations and exceptions to copyright in general, and fair use in particular.  They note that the traditional European approach to exceptions focuses on specific, narrow exceptions that lack flexibility.  There is little surprise in their conclusion that the EU needs the flexibility of fair use.  But they are also critical of the “all or nothing” approach that fair use fosters, where a use is either forbidden as infringing, or, if found to be fair use, does not allow for any compensation of the rights holder.  In some situations, they suggest, especially when the path to scientific progress leads through commercial users, a “take and pay” rule, similar to what is found in the EU three-step test, might be welcome.

The overall situation that Reichman and Okediji outline is most unpromising, as they suggest that the rights of scientific users are shrinking even in the area of print media, and have been virtually eliminated for science conducted in the online environment.  Again, the growing trend toward copyright or copyright-like protection over data is a large part of the problem.

In the area of e-science, Reichman and Okediji offer scientific research a Hobson’s choice between ignoring laws that have become unmanageable and unreasonable, or foregoing research opportunities.  The two paragraphs in which they lay out these unavoidable options are worth quoting in full:

If the relevant intellectual property laws were strictly enforced, and the scientific community continued to respect them, scarce public resources earmarked for basic research would be siphoned off to intermediaries from scientists seeking access to and use of their own published research result.  In that event, the public pays twice for the same output, plus a surcharge for mushrooming transaction costs … Less innovation, not more, is the predictable result over time.

Conversely, if intellectual property laws are ignored by researchers determined to carry on with their work irrespective of unreasonable legal constraints, automated knowledge discovery tools will become transformed into engines of massive infringement.  It is hard to see how systematic disregard of intellectual property laws, coupled with growing contempt for the legislative process that fosters them, will benefit authors, artists and other creators in the long run, especially when those condemned to outlaw status are not free-riders on costly musical and cinematic productions, but publicly-funded scientific researchers in pursuit of greater knowledge and applications that benefit humanity as a whole.

This is a situation that cries out for reform, and it is clear from the above that reform must begin by distinguishing scientific and academic research from commercial productions.  One-size fits all copyright laws are failing the scholarly community, and legislators and judges need to begin to treat scholarly works differently.  Fortunately, Reichman and Okediji provide us with a detailed set of recommendations about what kind of reforms are needed.

One reform they suggest that judges could accomplish would be the aforementioned “take and pay” approach to some uses that might otherwise be defended, probably unsuccessfully, as fair use.  The authors point out that Justice Souter suggested just such a possibility in a footnote to the Supreme Court’s decision in Campbell v. Acuff-Rose Music (the “Pretty Woman” case) but no judges have, up till now, taken the hint.  The discussion from Reichman and Okediji on this point alone justifies a close look at the article.

Many of the other reforms they suggest are grouped under the heading “What E-Science Really Needs from Any Legislative Reform.”  In that astonishing collection of suggestions, Reichman and Okediji include a tailor-made exemption for scientific research, rules allowing the breaking of technological locks more freely for research purposes, and limitations on the ability to override copyrights limitations and exceptions by using terms of use and other contractual arrangements.  And one other that we should mention that is particularly relevant in the international context is an alignment between database protection rules and copyright exceptions.  Not only should copyright exceptions be used to adjust database protection laws, say the authors, but these exceptions, both as the apply to copyright per se and to sui generis data protections, must be “preemptory, mandatory and immune from both contractual overrides and TPMs” (citing a report from the Max Plank Institute).

There is so much to digest in this article that I feel a little abashed trying to summarize it.  But one thing is certain, I think.  The attention that Reichman and Okediji shine on the conflict between copyright laws and scientific progress is simultaneously profoundly welcome and deeply troubling.  Welcome because we must look at the problem squarely and honestly, and troubling because we have such a long way to go to solve it.

Another fair use victory for libraries

Note to readers — a commenter has correctly pointed out that I was a bit over-enthusiastic in this post.  It is not strictly true that no infringement has been found in any of the cases against libraries.  In the Georgia State case the Judge did find five instances of infringement among the seventy-five digital excerpts that were challenged.  But the Judge also held that the University’s fair use policy was a good faith effort to comply with the law and, for the purpose of awarding costs and attorneys’ fees,  determined that GSU was “the prevailing party.”  GSU was simply ordered to revise its policy to reflect places where the Judge felt it had not adequately defined fair use.  To be adequately cautious, however, my comments at the end of the first paragraph and of the full post should have said that fair use has been an effective tool for academic libraries that has been upheld in each case and has prevented any significant liability.

We knew some time ago that the second complaint filed in the copyright infringement case brought against UCLA by the the trade association AIME over streamed digital video had been dismissed.  But last week Judge Consuelo Marshall filed her order that explained the grounds of that dismissal.  What we have learned is that this case is a slight victory for fair use in libraries.  On the specific issue we do not have clear guidance, just an affirmation that fair use arguments for streamed digital video are not unreasonable or obviously wrong.  But it is helpful to see this ruling as part of an overall picture, one in which all three cases claiming copyright infringement by academic libraries which were defended on the basis of fair use have now been decided at the trial court level and NO INFRINGEMENT HAS BEEN FOUND.

In the AIME v. UCLA case, the reasons for the dismissal are primarily that the plaintiffs lacked standing  — the legal right to seek judicial redress of a claim — and that the defendants have either sovereign immunity or qualified immunity based on their status as state officials performing their jobs.  A lot of the interest in the ruling is in the part that discusses qualified immunity, because that holding involved deciding whether or not a reasonable person in the position of the official charged would have know that his or her actions would be “clear violations of established copyright law.”

As for the standing issue, the Court says pretty much the same thing I said at the time the second complaint was filed — the plaintiffs have not shown any facts that make this complaint different from their first one, which was dismissed earlier.  These plaintiffs simply are not the right people to bring this case, and the folks who would be in a position to claim copyright infringement have not stepped forward to support the complaint.  Perhaps those other parties understood the risk that there would be another positive ruling for fair use, and did not want to take the chance.

But as I say, the real action is on the issue of qualified immunity, where a plaintiff must prove, to overcome such immunity, that the defendants either knew or reasonably should have known that they were infringing copyright law.  In the light of what the Judge calls the “ambiguity” of the fair use issue, she declines to so rule, and hence dismisses the complaint against these defendants (including library and IT staff) because of their qualified immunity.

Judge Marshall’s fair use analysis is very cursory, but still quite interesting.  On the first factor, the purpose of the use, the Judge simply states that it favors fair use, presumably because the use is educational and non-profit.  This is no surprise.  On the second factor, the Judge rec0ognizes that the works involved, performances of Shakespeare plays, are creative, but also that they are being used in an educational context.  She finds this factor to be neutral.  As to amount, Judge Marshall thinks this factor weights “slightly” against fair use — the entire films are being streamed, of course, but she finds “compelling” the argument that this streaming is analogous to the “time shifting” upheld by the Supreme Court as fair use in the Sony video recorder case.  Finally, as to the impact on the market factor, the Judge says this factor FAVORS fair use because there is no difference in a streaming situation as to market harm than would be the case in the clearly permitted situation where a classroom full of students watched an entire movie together.  The recognition of this essential similarity as to market harm strikes me as fundamentally important.

So the Judge holds that “there is, at a minimum, ambiguity as to… fair use.”  In fact, her analysis would be very likely to uphold fair use, but she does not need to reach such a ruling in order to find in favor of qualified immunity and dismiss the complaint.  Judge Marshall then goes on to examine the licensing terms under which UCLA obtained these videos, to see if those terms state unambiguously that streaming is not allowed.  Here too she finds ambiguity, and thus upholds qualified immunity regarding that assertion as well.

Legally, the bottom line in this case is that all of the claims are dismissed with prejudice, which means that they cannot be refiled, although, of course, the dismissal could be appealed, if AIME and Ambrose Video are inclined to waste even more money.

For libraries, I think there are several takeaways from this case:

1.  The fair use issue as to streamed digital video was not decided.  This is not a blanket authorization for schools to proceed with such projects; they still require careful thought and a local decision that balances the risk of copyright litigation with the pedagogical value of proceeding.

2.  It is very important to look at licenses for the videos in question, where they exist.  It seems clear that an unambiguous license would have overcome qualified immunity in this case.

3.  The grounds for this dismissal apply only to the state officials involved; the same analysis would not apply to a private institution, although the fair use analysis, of course, could be raised by such a college or university.

4.  Overall, the atmosphere for fair use on campus is a lot better today today than it was six months ago.  We have seen a pretty convincing victory in the Georgia State e-reserves case, a sweeping one in the HathiTrust case, and a tepid affirmation of fair use (probably!) in this streamed video case.  Although the first two of those cases are being appealed (we do not know if AIME will appeal this latest decision), we now know that courts are quite sympathetic to fair use by academic libraries and on college campuses.  We know that most of the arguments that content providers have long offered to discourage reliance on fair use have been rejected.  We know that no campus has yet been found guilty of infringement when it makes reasonable fair use of lawfully acquired materials for limited teaching purposes.

Redefining research

The last month has seen extraordinary changes in the copyright law of Canada, including two Supreme Court decisions that I wish we could import south of the border to the U.S.

At the end of June a comprehensive reform of the Canadian copyright law known as bill C-11 received its final approval in the Canadian Senate and “royal assent.”  It seems that this means C-11 is now formally the law in Canada, although according to University of Ottawa law professor Michael Geist the reforms do not actually take effect until after there is an “order in council” process that creates the new regulations around the bill.

This new copyright reform contains some very good news for education in Canada.  I have not studied the bill thoroughly, but will note the handful of reforms that seem most important.

First, the exception to the exclusive rights of copyright in Canada that is known as “fair dealing” was expanded by the addition of three additional purposes to the two — research and private study — already mentioned in the provision.  Those new purposes are education, parody and satire.  The way fair dealing works, in order for a finding that an activity that implicated one or more of the exclusive rights was not an infringement because it was fair dealing, a court must first decide if the activity fit into one of the enumerated purposes, and then do an analysis to decide if that activity within one of the purposes was fair.  The Supreme Court of Canada enunciated six factors that are used in this second step of the process, which really look a lot like US fair use.  But the absence of education from the list of dealings that were eligible for a finding that they were fair (the first step in the analysis) was a significant problem for universities and schools.  Bill C-11 remedied that problem, and it has really changed, I would imagine, the debate over the license for universities that has been offered by the collective rights group know as Access Copyright (which recently jumped in price from $3.75 per student to $26).

Another major benefit for universities in the bill, and another reason the Access Copyright license seems less worth the major increase, is that there is now explicit permission for instructors to show films and other works that can be performed to an audience of students on the premises of the institution.  This, of course, sounds a lot like the US provision for face-to-face teaching found in section 110(1) of our copyright law.  There are also new provisions in C-11 that explicitly authorize reproduction by institutions and their employees for the purpose of instruction and that address the rights of distanced students to receive lessons via “telecommunications.”  There is a helpful summary of the impact of C-11 on education here, from the British Columbia Library Association.

Less that two weeks after the royal assent to bill C-11, the Supreme Court of Canada ruled on five copyright cases that had been before it.  Two of those cases had major implications for the definition of “research” in the fair dealing provision which is outlined above.  Collective rights organizations had challenged two practices — Access Copyright had asserted that teachers making copies for students was outside the scope of fair dealing, and a misic licensing organization called SOCAN had made the same assertion about short preview clips of songs that consumers could listen to before buying the complete piece.  Both organizations were seeking additional licensing fees for the challenged practices, and both lost.

In her opinion, Justice Rosalie Abella significantly expanded the definition of research, following a 2004 Supreme Court decision that had stated that the word should be read expansively.  She ruled that those short music clips should be encompassed as research, recognizing that the term can encompass casual information seeking in addition to formal academic study.  And she held that the private research of students does not require that they actually make the copies; that research and researchers can be guided by a teacher without giving up their rights under fair dealing:

With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.

Another important part of these decision about instructional copying is that Justice Abella found little or no harm to the market for published work caused by this copying.  The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales.  This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance  and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses.  I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional  revenue stream for publishers is.

The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case.  The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not.  By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us.  In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study.  In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience.  Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.

US courts are often quite reluctant to be seen to be influenced by international law.  But at the very least, this ruling from the Supreme Court of Canada shows the plausibility of the analogy that sees traditional, allowable educational activities simply being transferred to an online environment.  The change in technology should not entitle rights holders to additional fees any more than, in Canada, the human inter-mediation of a teacher does.

More on GSU and the publisher response

Now that I am back from vacation and have read the GSU ruling and some of the commentary more thoroughly, I wanted to add a few additional comments.  In many cases these may be repetitive of things others have already said; I have not read all the commentary, of course, and some of this writing is for my own sake as much as yours.  If it is redundant, I apologize.

I do hope most folks either have read or will read Brandon Butler’s “Issue Brief” for the Association of Research Libraries, which does a great job of analyzing the ruling.

The main thing that struck me as I read the fair use discussions for the individual excerpts that were in question in the case is that Judge Evans really did understand that fair use is a balancing test.  Although some parts of her reasoning are more mechanical than I would like, she does not take a bright-line view of any of the factors.  It seems worth a look, to me, at the way she relates the four factors in her discussion.

First, she finds that the first two factors — the purpose and character of the use and the nature of the original — always favor fair use in regard to the specific use and the specific works before her.  This is true even though she declines to hold that the provision of short course readings is transformative, which is the key determinant in most fair use rulings over the past few decades.  Instead, she sees this activity as at the heart of what fair use is intended to be, according to its own express terms.  On the nature of the original, she holds that the works in question were all published and factual in nature.

This point about the second factor is likely to be the focus of some disagreement from the publishers.  They wanted the court to hold that factor two did not favor fair use, apparently because of the effort involved in writing and publishing academic works.  No one is more respectful of the labor of scholarship than I am, but hard work by itself does not get one a copyright or insulate one’s copyright from fair use.  The Judge observed that educational works are exactly the works that fair use is focused on, with its favored purposes of research, scholarship and teaching.  She also noted that permission fees make up no part of the incentive for academic authors to write their works (p. 81ff).  This, to my mind, is the key reason for finding that factor two favors fair use in this case (although the Judge called it an “additional consideration”).

On the other side of the analysis, Judge Evans presumed, at least as an initial matter, that factor four, the impact of the use on the market for or value of the original, always favored the plaintiffs, which is to say it counted against fair use.

Which brings us to the third factor, the amount used.  This was the “swing vote” in most of the individual analyses, and the Judge applied a clear but quite narrow rule.  Ten percent of a work was acceptable as fair use if the book had fewer than 10 chapters, and a single chapter was considered fair use for books that contained 10 or more chapters.  This rule, which was applied quite strictly to decide if a “decidedly small” portion of the work had been used (that was the standard Judge Evans applied for this particular type of use), had some odd results; as little as 3% of a work was considered too much for fair use in a situation where the work was long and had many chapters.

But notice something important.  When the third factor disfavored fair use, the factor analysis stood at two in favor (one and two) and two against (three and four).  In those cases the Judge went on to do additional analysis, asking several further questions.  Was the heart of the work used? (she declined to assume that all e-reserve uses involved the heart of a work)  Was there a “readily available” license for reproduction of the excerpt in digital form? Were licensing fees an important part of the value of the original work in question? (Judge Evans held that they usually were not, so this was an important question).

The results of this additional analysis were what finally determined whether or not a use was fair if the third factor threshold the Judge had set was exceeded.  When the amount used was within her guideline of 10% or one chapter, the availability of a license for digital distribution did not sway the analysis against fair use.  And when a license for a digital excerpt was not available, the amount used was less important (although the leeway here is small, for Judge Evans).

If this rule about amount seems unduly restrictive, libraries would do well to remember three other findings from the ruling that impact how we might view this guideline.  First, she held that percentages should be calculated based on the total number of pages in the book, which makes for a much easier and quicker determination of amount than the method of counting the plaintiffs sought.  Second, she held that individual chapters by different authors in an edited volume should by counted by the same method and not as if each were an individual work, which also simplified the process of decision-making.  Third, she rejected the idea that a use that was fair use in one semester must be paid for in a subsequent semester.

All three publisher plaintiffs, along with the two organizations (the Copyright Clearance Center and the Association of American Publishers) that bankrolled them, have now issued initial responses to the verdict.  Overall their objections are quite vague.  Several of the responses refer to legal or factual “errors” in the ruling, but they do not specify what they are.  The AAP does disagree with the Judge’s finding that the loss of permission revenues because of fair use imperils their business; they repeat this absurd claim even after the Judge pointed out, based on figures supplied by the plaintiffs themselves, that these publishers made less than one quarter of one percent of their 2009 revenues from academic book and journal permissions.

All of the publishers assert that there is error in the judge failing to consider what the AAP calls the “full context” of the activities at GSU.  Sage and Oxford (who issued identical statements) suggest a “pattern and practice” of infringement , while Cambridge refers to “systematic and industrial-scale unauthorized reproduction.”  It is hard to know what to make of these assertions, other than that they arise out of sheer frustration.  Since the Judge has just found that only five of the excerpts before her were infringing, “systematic” and “pattern” seem like inappropriate words.  The Judge had to decide the case based on the specific allegations and evidence before her, and the plaintiffs were the ones who produced those allegations.  So if only five out of 99 (or 75, depending on where you start counting) were infringing, no pattern of systematic infringement has been proved.

The Cambridge statement has the strongest hint of an appeal, saying that they look forward to working with their “partners” to “resolve this issue.”  It also has the chutzpah to evoke “our authors” as victims of the ruling.  How many times can we repeat what publishers hate to admit in public, that the vast majority of academic authors are not paid for their scholarly writings (by publishers, at least) and do not consider permission fees when deciding whether, what or where to publish?

So where do we go from here?  We need to remember that this is only a District Court ruling, which is not binding on any university other than GSU, that no remedy has yet been ordered, and that it is likely to be appealed.  Nevertheless, it is a carefully reasoned ruling with lots of specifics for libraries and universities to consider.  Some institutions may decide that the Judge has defined a safe harbor and that they want to anchor there; in that case it is worth noting that some of the analysis she applies would be difficult to replicate without detailed financial information from publishers.  More likely, schools will look at this ruling and tinker with their own policies a bit.  Given both its substance and the still-early stage of the proceedings (really, even after 4 years and 350 pages this is not the final word), this decision is not, in my opinion anyway, a cause for large-sale or precipitous changes at most institutions, a fact that even the publisher statements seem to admit.

The GSU decision — not an easy road for anyone

Overall there is good news for libraries in the decision issued late yesterday in the Georgia State University e-reserves copyright case.  Most of the extreme positions advocated by the plaintiff publishers were rejected, and Judge Evans found copyright infringement in only five excerpts from among the 99 specific reading that had been challenged in the case.

That means she found fair use, or, occasionally, some other justification, in 94 instances, or 95% of the time.

But that does not make this an easy decision for libraries to deal with.  Indeed, it poses a difficult challenge for everyone involved, it seems.  For the Judge, it was a monumental labor that took almost a year to complete.  She wrote 350 pages, working through a raft of legal arguments first and then painstakingly applying them to each of the challenged readings.  And for me, with a week’s vacation pending, I am trying to make sense of this tome before I leave, which is why I am writing this at four in the morning on a Saturday (please excuse typos!).

For the publishers who brought the suit – Oxford, Cambridge and Sage – there are some bitter disappointments.  Judge Evans explicitly rejects the Guidelines for Classroom Copying as the standard to be applied.  She also found the two major cases on which plaintiffs relied, American Geophysical Union v. Texaco and Princeton University Press v. Michigan Document Services, to be inappropriate analogies for the situation before her.

One holding that is certain to generate much discussion is Judge Evans’ rejection of the so-called “subsequent semester” rule, which had evolved from the Classroom Copying guidelines and led many institutions to assert that a liberal interpretation of fair use was permissible once but that permission had to be sought for subsequent uses of the same text.  Judge Evans found this restrictive approach to be “an impractical, unnecessary limitation” (p. 71).

Perhaps most distressing for publishers is the Judge’s statement that permission fees are “not a significant percentage of Plaintiff’s overall revenues” and that their loss through the assertion of fair use does not threaten the publishers’ business.  She calls this latter argument “glib” (p. 84).

In spite of all this, there are significant aspects of this ruling that will prove very difficult for libraries as well.  Two aspects seem especially likely to stir up consternation.

First, the Judge applies a strict standard for the amount of a work that is permissible under fair use in this situation.  The percentage she selects is 10%, or a single chapter.  In putting this percentage into practice, she bases the calculation on the total page count of a book (this was an issue at trial, with publishers arguing that only the actual text of the work should be counted), and rejects any distinction for books that are edited, in which each chapter has a different author (p. 88).  This is a less flexible standard than many libraries would like, I think, and it seems too rigid to be a good fit with the overall structure of fair use.

Second, the Judge bases many of her analyses of the fourth fair use factor on the percentage of the overall revenue that publishers realize for a particular title that comes from permission fees.  She criticizes the GSU policy for not providing sufficient guidance for making a determination about this kind of market impact, but immediately acknowledges that the standard she is applying “would likely be futile for prospective determinations (in advance of litigation)” (p. 337).  This is simply an unhelpful approach, since libraries and faculty members must make such prospective determinations without knowing all the information that publishers provided, under court order, to the judge.  Recognizing this, Judge Evans says that “the only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available) (p. 338).

Hard as it may be to be told to make this assumption, even though the judge has found it not to be the case in most of the instances before her, we should pay attention to her qualification of it.  The permissions we should look for are those available for digital excerpts.  In another place she asserts that she will consider the permissions market in the fourth factor analysis only when a license is “readily available” at a “reasonable” price for a “convenient” format (p. 89). She explains that the license must, to qualify as convenient, allow digital excerpts.  This standard is actually hard for some publishers to meet in their current licensing postures.  No infringements of Cambridge works were found, for example, probably in part because Cambridge allows only very limited licensing through the CCC.  If publishers do not license in a way that facilitates reasonable educational use in the digital environment, the fourth factor will, she seems to be saying, cease to favor them.

Two more quick points, and then I will try to summarize the fair use analysis the Judge is recommending.

First, it is very important that the Judge finds that GSU’s copyright policy was a good faith effort to comply with the copyright law by interpreting fair use (p. 338). She criticizes the policy on two points – its failure to define the strict percentage limit she says is necessary and for not providing guidance about market harm, which she admits would be impossible.  But she does not believe the policy was a sham or merely “cover” for doing whatever the faculty wanted, as publishers asserted.  This would be a significant finding if money damages were at issue, due to the waiver of statutory damages in the law for educational institutions that make good faith fair use decisions.

The second point I think is interesting is the fact that Judge Evan considered hit counts when making determinations about some of the disputed excerpts.  In some cases she cuts short the fair use analysis because hit counts suggest that no students actually read the material.  In those cases she calls the copying “de minimis” and ends her analysis (see p. 96, i.e.).  This means that it will be hard to dispute about specific readings without knowing whether or not they were actually read (we know, sadly, that many such assignments are not).  Putting infringing material in a system, apparently, is not enough to establish liability; plaintiffs will have to show it has been used.

So here is the bottom line on the fair use analysis Judge Evans has outlined (pp. 87 – 89 of the opinion).  The first factor – purpose and character of the use – heavily favors fair use because it is for non-profit teaching and research.  She mentions the section 107 reference to “multiple copies for classroom use” and she does not employ a “transformational” approach.  She finds that the second factor also favors fair use, since all of the works at issue were non-fiction and educational in nature.  The third factor can go either way, depending on whether or not the excerpt is less than 10% or a single chapter.  The fourth factor is where the difficulty lies; Judge Evans finds that it “heavily favors” the plaintiffs IF a license for the appropriate format is readily available at a reasonable price.  There is lots of room to debate this part of the analysis, and lots of uncertainty, I think, about how it can be applied.

The Judge has deferred any action on crafting a remedy for the few infringements that she found.  She has asked the plaintiff to suggest an injunction, which will be difficult to craft to fit this ruling and will have to look very different from the one they suggested 18 months ago.  GSU will have a chance to object to any draft injunction, so the remedies phase of the case will go on for a while.

In general I expect librarians to be happy about the outcome of this case.  It suggests that suing libraries is an unprofitable adventure, when 95% of the challenged uses were upheld.  But there will also be a good deal of hand-wringing about the uncertainties that the Judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage.  We will spend considerable time, I think, debating whether and how to implement Judge Evans’ rules into our own copyright policies.  In the meanwhile, of course, the ruling is nearly certain to be appealed.

(Note that the opinion is not yet up on the free sites that I usually link to, but three different comments to  my previous post have provided links to PDF copies)

Seeking a boundary

Is it just me, or do there seem to be a lot of lawsuits filed by publishers in the higher education space recently?  It is increasingly obvious that the disruption caused by the digital environment has led publishers to embrace litigation as a strategy for protecting their business models, and that that strategy cannot be good for the overall well-being of higher ed.

The latest such lawsuit, filed on March 16 in the Southern District of New York, comes from three major textbook publishers – Pearson Education, Cengage Learning, and MacMillian Higher Education – and targets a new Internet-based business called Boundless Learning that purports, according to the complaint, to create textbooks, using open educational resources, that parallel and can replace the high-priced textbooks that each of these publishers offer.  The sum of the complaint is that Boundless copies the selection, arrangement and organization of their textbooks much too closely and so constitutes copyright infringement.

One should never form conclusions about a lawsuit based only on the complaint, which is inevitably just one side of the story and is always pitched to make the defendant’s behavior look as dastardly as possible.  Nevertheless, it seems safe to conclude that this lawsuit is not as farfetched as some of the ones we have seen recently.  The plaintiffs are really just asking the court to help draw a line that has never been very clear in copyright jurisprudence, the line between idea and expression.  Their description of the situation makes it sound like the placement of that line is obvious, but it probably is not.  What it certainly is, however, is a vital line for higher education to examine and understand.

I occasionally run across an interesting assumption about copyright, which I think is common both in academia and in the wider world.  It is the belief that if you want to reuse an image or a figure without permission, you can simply redraw it and avoid all copyright entanglements.  Like all simple rules in copyright, this one is not true; the standard for infringement is “substantial similarity,” and a redrawn figure or image that is substantially similar to the original could still be found to be infringing.  Far better, I tell those who raise this possibility with me, to use the original figure or picture in a way that supports the assertion of fair use, or to get permission.

From the complaint, it sounds like Boundless Learning is doing something similar to this “redrawing” in hopes of avoiding copyright problems.  The plaintiffs assert that Boundless creates “shadow versions” of their copyrighted textbooks, imitating the arrangement of topics and sub-topics, the depth of coverage for each area, and even the choice of illustrative examples.  I fail to see how a running and a fishing bear illustrate the First and Second Laws of Thermodynamics, but the complaint claims that the Boundless biology text imitates Pearson’s standard text on the subject down to such similar, but not identical, pictures.

So the question is directly posed about where the line between idea and expression is to be fixed.  Is the example of a bear merely an idea, which cannot be protected by copyright, or does it represent a creative and expressive decision by the Pearson authors which is infringed even by a different picture?  To put it another way, how much actual expression must be copied, if any, to infringe on another’s protected expression?  We have seen the “derivative works” right expand a great deal over the years, so that today even characters in a work of fiction are often protected even when the alleged infringing character copies no actual expression from the original (as in the recent Catcher in the Rye sequel case).  Is there a boundary on that right?

Since scholarship is an inevitably cumulative process, in which each new work builds, more or less explicitly, on what has been done before, the boundaries of the derivative works right and the line between protected expression and public domain ideas are very important to understand.  If this case brings us a little more clarity, that would be good.  But the judge will need to be very careful not to develop rules that would inhibit the basic processes of teaching and research.

Finally, I want to point out an oddity I noticed in the complaint that was filed to initiate this case and which will bear watching (no pun intended).  In addition to naming Boundless as a defendant, the complaint lists 10 “Doe” defendants; people who are alleged to be complicit in the claimed infringement but whose names are not known and can only be discovered through court orders.  Naming such John and Jane Does is a common technique in file sharing lawsuits and in some of the more notorious copyright “trolling” cases.  But in this complaint it is quite odd, because we have no real clue what role these people are alleged to have played or why they are being sued.  Are they students who have ordered “shadow” textbooks from Boundless, employees of Boundless, or faculty members who have recommended Boundless to impoverished students? As the case goes forward, we may learn something about how to draw the line between idea and expression, and we may also discover just who the publishers are willing to target in their campaigns to use litigation to protect their markets, if and when the identities of these Doe defendants are revealed.

What were they thinking?

When the Chronicle of Higher Education ran this story about the relatively new intellectual property policy at the University of Louisiana, one of my colleagues reacted with the question in my title.  It is a valid thing to ask — how did the University system think this was going to go when they drafted the new policy?  The same forces that presumably led to revision of the policy in the first place — increasingly various and potentially profitable work created for the online environment — will also lead faculty authors and creators to pay more attention to IP policies.

It seems the university system has been surprised by the opposition the policy has generated, but such surprise speaks poorly of their awareness of the realities on their own campuses.  I am reminded of the surprise that content industries have expressed at the opposition to the Stop Online Piracy Act or the European dissent over ACTA.  What, exactly, did they expect?  The days when no one pays attention to such policies are past, and that is a very good thing.

The works created by faculty raise a complicated situation in a couple of ways, and need to be treated differently than works created by employees in a corporate environment.  For one thing, there is the issue of academic freedom.  Although the copyright law could well support the claim that all faculty works, even traditional scholarship like journal articles and books, are work for hire, the case would be much more complicated than the university system seems to imagine.  As I say, academic freedom would pose a unique obstacle, since courts have recognized a First Amendment interest in academic freedom.  So there is a constitutional argument could be used to counter a work for hire claim at a public university.  Also, there would be an argument over the traditional “teacher exception” that courts recognized for many years.  Although there have been no decisions definitively invoking the teaching exception since the 1976 Copyright Act took effect, it would still provide a line of defense against work for hire claims that the universities would struggle to overcome (this article by one of the scholars quoted in the article explains this ambiguous situation).

Then, of course, there are the practical problems.  Having a policy like this is sure to make it harder for the universities in the Louisiana system to recruit top faculty.  Even if individual campuses modify the policy into something wholly different than the system-wide template, which they would be wise to do, the question will always hang over recruitment, and the balance of decision-making may be tilted in some cases involving highly productive  and savvy professors.  On the university side, the mountain of paperwork they will create for themselves if they really undertake to review every contract for publication seems not to have occurred to the drafters.  But any small additional profit they could hope to make by claiming a portion of royalties is sure to be devoured by increased administrative costs.

As I read the article, I was struck by the sense that the university system was trying to create a single policy that would treated patented works and those subject to copyright in the same way.  Any superficial sense that this might seems to make is easily dispelled, however; there a good reasons to deal differently with these two varieties of intellectual property.  Copyright, for one thing, is easy and cheap to get.  It is, in fact, automatic whenever original expression in fixed in tangible form.  There is no need for the university employer to intervene to help the employee creator protect her rights.  With patents, the situation is wholly different.  Patents are difficult to get and it usually requires an investment of tens of thousands of dollars to successfully “prosecute” a patent.  And patents, when they generate a profit (which few actually do), offer much larger gains.  So creators need more help from the university to get a patent, and universities have a greater incentive to provide that assistance, than is the case with copyright.

Also, the “significant use of university resources” is really quite different with copyrighted materials than it is with patents.  Often the resources employed to create something subject to copyright are resource the university would supply in any case — a library, computers in faculty offices, art supplies for artists who both create and teach, a video camera in a dance studio, etc.  Resources used in equipping labs to pursue patentable inventions, on the other hand, are often extremely specialized and sometimes costs millions of dollars.

This does not mean that the copyrighted productions of a faculty are less important than those subject to patents; their very ubiquity testifies to how vital such works are to the tasks of teaching and research.  But the conditions of creation are so different that policies that conflate the two are seriously misguided.

One point I try to make whenever I discuss copyright ownership policies on university campuses is that such policies should distinguish between ownership of the underlying rights and uses that other parts of a scholarly community can be licensed to make.  For example, a university need not claim ownership over the design of an online course by a faculty member as long as it assures, by policy or by separate agreement, that it has a perpetual license to use that courseware.  Thus the faculty member’s academic freedom and reasonable expectation to own her own work is upheld, but the university does not have to worry about having to redesign the course if the faculty member leaves or to pay her twice for it.  The designer, of course, is also able to reuse her work at a new institution, so everyone’s needs can be met.  A careful policy on copyright ownership should be a kind of matrix that identifies types of works and groups of users who might have an interest in those various kinds of works.  Then the decision about ownership can be made at an appropriately granular level, and the use rights of those with recognized interests in each category can also be assured.

Copyright ownership policies are important, and becoming more so everyday.  Campuses that do not have such policies need to remedy that situation sooner rather than later, and before conflicts develop that will leave the decision to courts applying the default rules of the copyright law.  The policy proposed by the University of Louisiana System is a poor model and an apparently ill-considered stab at such a policy.  But if the controversy it has generated causes faculty in Louisiana and elsewhere to think hard about these issues, perhaps some good will result.

Is the Copyright Office a neutral party?

Recently a friend was asking me about my job title.  I was hired primarily to address copyright issues, but my title is “Director of Scholarly Communications.”  I am, in fact,  involved in lots of other issues encompassed by that broader title, but my friend made the valid point that universities are beginning to divide the copyright function out from digital publishing services and the like.  Her question got me thinking, and I concluded that I like my title precisely because it emphasizes the context of my work.  My job is not simply to know the copyright law, but to help apply it, and even work to change it, in ways that best serve the needs of scholars and teachers on my campus.  I am not hired, I don’t believe, to be neutral; I have a defined constituency, and my title is a constant reminder of that fact.

This conversation came to mind as I read two documents released by the Copyright Office in the past couple of weeks.  The constituency of the Copyright Office, presumably, is the public as a whole, and their role ought to be more neutral than mine, seeking the balance between protection and use that has always been at the core of copyright law.  In these two documents, however, the tendency to think that, as the Copyright Office, advocacy for anything that increases copyright’s strength and reach is the proper role, shows through.  The needs and voices of owners in the legacy content industries seem to get extra weight, while the needs of users, who are more diffuse and do not have as many dedicated lobbyists, get less attention.

In its brief report on “Priorities and Special Projects of the United States Copyright Office” the Office details the studies, legislation and administrative projects that it intends to work on for the next two years.  In its legislative priorities, the first three listed are “Rogue Websites,” “Illegal Streaming,” and “Public Performance Right in Sound Recordings.”  Each of these priorities is an endorsement of particular legislative action by Congress — the first clearly endorses the bill alternately called PROTECTS IP or SOPA or ePARISITES.  Indeed, each of these priorities seems to be dictated by the current lobbying activities of the entertainment industry, and each is a very much non-neutral endorsement of greater scope for and stronger enforcement of copyright protections.  There is little sign that the voices arguing that copyright already reaches too far and is over-enforced are being heard.

Other priorities do seem more neutral.  The Copyright Office wants to “continue to provide analysis and support to Congress” on orphan works, and it repeats its intention of making legislative recommendations based on the report of the Section 108 Study Group, which addressed the specific exceptions to copyright for libraries.

This last priority created a rather humorous situation for me last week when I was contacted by a member of the library press seeking information about this “new” report on section 108.  In fact, the report was issued in 2008.  Nothing has come of it in three and a half years, and, even if all of its recommendations were suddenly adopted, it would do little to improve the situation for libraries because the Study Group was unable to find agreement on the most pressing issues.  The Copyright Office does not mention the more comprehensive proposal on library exceptions made by IFLA to the World Intellectual Property Organization.

My real interest focused on the Copyright Office’s desire to do something about orphan works.  In addition to the legislative priority listed, the report promised a study document on mass digitization, which would naturally have to address orphan works, and that document was issued a few days ago.  Here we get a glimpse of how the Copyright Office plans to address the difficulties posed by orphan works.

The report makes the CO’s preferred approach very clear — “As a practical matter, the issue of orphan works cannot reasonably be divorced from the issue of licensing.”  This is an interesting statement, since the last proposal to resolve the issue that the CO nearly got Congress to adopt a few years ago did not rely on licensing, but addressed the issue by reducing the potential damages for using an orphan work after a reasonably diligent attempt to find a rights holder.  There clearly are other approaches, but the appetite  of industry lobbyists has, since the Google Books case, been whetted by the possibility of profiting from other people’s (orphaned) works, and the CO has been swept up in the licensing fever.

The report gives a detailed and very helpful discussion of the various types of licenses that could be used, but it never addresses the question that seems most pressing if orphan works are to be licensed — who is going to get paid?  If works are genuinely orphaned, there is no rights holder to pay, so orphan works licensing proposals must decide who is going to sell the licenses and where the money is to go.  Other countries have adopted licensing schemes, and often the licensing is done by the government; in the U.S., however, I think we have to assume that private collective rights organizations (who are given prominent mention in the report) would collect the money and, perhaps after some period of time, keep it.

This report is about more than orphan works, of course; it addresses the broad issue of legal concerns in mass digitization.  I was interested to see how fair use was treated, both in that broader context and in relation to orphan works.  I was disappointed in both regards.

In the general discussion of mass digitization, fair use is pretty much summarily dismissed by the Copyright Office.  It begins with the assertion that “the large scale scanning and dissemination of entire books is difficult to square with fair use,” which seems to beg the question.  The rest of the section reads like a legal brief against Google’s position on fair use in the book scanning case.  Nowhere does the report consider what difference it might make for a fair use claim if the project were wholly non-commercial, nor do they consider that fair use might be part of an overall project strategy that included other approaches, such as selected permission-seeking.  The report treats fair use as an all-or-nothing approach and dismisses it as unworkable without the nuanced consideration it demands.

More troubling is the fact that, having dismissed fair use in the broader context of mass digitization, the Copyright Office never discusses it in the more narrow field of orphan works.  With orphans, of course, fair use seems like a stronger argument, since there is no market that can be harmed by the use, especially if it is itself non-commercial.  But it seems clear that the CO is committed to creating such a market by pushing a licensing scheme, and is not willing to discuss any option that might undermine its predetermined conclusion.